Smith v. Atlantic Richfield Co., 85-2072

• Decision Date: 25 March 1987
• Docket Number: No. 85-2072,85-2072
• Citation: 814 F.2d 1481
• Parties: 22 Fed. R. Evid. Serv. 1324 Gary SMITH, Plaintiff-Appellant, v. ATLANTIC RICHFIELD COMPANY, a Pennsylvania corporation; and Anaconda Minerals Corporation, a Delaware corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1481

814 F.2d 1481

22 Fed. R. Evid. Serv. 1324

Gary SMITH, Plaintiff-Appellant, v. ATLANTIC RICHFIELD COMPANY, a Pennsylvania corporation; and Anaconda Minerals Corporation, a Delaware

corporation, Defendants-Appellees.

No. 85-2072.

United States Court of Appeals, Tenth Circuit.

March 25, 1987.

W. Brent Wilcox (Edward B. Havas and Christopher M. Mislow, with him, on brief), of Giauque & Williams, Salt Lake City, Utah, for plaintiff-appellant.

Ray R. Christensen of Christensen, Jensen & Powell, Salt Lake City, Utah, for defendants-appellees.

Before BARRETT, SETH and LOGAN, Circuit Judges.

BARRETT, Circuit Judge.

Gary Smith appeals from the judgment entered in favor of Atlantic Richfield Company (ARCO), pursuant to a jury verdict in this personal injury case. Smith, a coal miner employed in the Beaver Creek No. 2 mine, was severely injured by a piece of rock that fell from the roof of the mine while he was on duty in May, 1982.

At all times relevant to this case, the Beaver Creek Coal Company (Beaver Creek) was a wholly-owned subsidiary of ARCO. Smith was employed by Beaver Creek. Beaver Creek was not a party to this lawsuit, pursuant to operation of the Utah Workmen's Compensation statute. Smith alleged that ARCO was negligent in rendering services relative to mine safety measures and that his injuries resulted therefrom.

One of the decisive issues for jury determination was whether Beaver Creek was, in fact, autonomous or whether ARCO was actually managing the mine or managing the safety aspects of the mine at the time of Smith's injuries. The jury could not find ARCO liable to Smith unless ARCO was managing the mine or the safety aspects of the mine. The evidence at trial showed that although ARCO and its employees stood ready to provide guidance in safety and other matters, Beaver Creek's operation was in many respects autonomous. For example, when ARCO acquired ownership of Beaver Creek, the individual who had been president of Beaver Creek continued in that position. When a new president was hired, he found that ARCO would give "general guidance" on safety matters but this would be only upon request. A training manual on "retreat mining" methods (explained below), prepared by ARCO engineers, was prepared at the request of Beaver Creek and was a compilation of methods already in use at Beaver Creek. Beaver Creek had its own management, its own payroll and its own safety organization.

The ARCO witnesses testified that their role was one of support, and that Beaver Creek management made the day-to-day decisions. ARCO's Manager of Safety and Occupational Health testified he had no relationship with the safety organization at Beaver Creek, although he sometimes provided Beaver Creek with material or manpower or would respond to requests for assistance in the mine. On the other hand, the management of the Beaver Creek Mine was directly answerable to ARCO and received much advice and direction from ARCO on geologic matters.

The second decisive issue for jury determination was whether there was sufficient evidence of ARCO's negligence causally related to the injuries sustained by Smith. It was Smith's position that his injuries were the result of a defective roof in the mine and that ARCO was responsible for the defective condition.

All coal mines were required to submit roof control plans to the Mine Safety And Health Administration (MSHA), a federal regulatory agency that oversees coal mine operations and whose function is to help ensure safe mine conditions. See, 30 U.S.C. Sec. 801; 30 U.S.C. Sec. 862. Beaver Creek's plan was prepared by the operations and safety personnel of Beaver Creek and had been approved by MSHA. This approval involved an inspection of the mine, as well as acceptance of the roof control plan. "Roof control" was the process of keeping pieces of rock from falling out of the roof and injuring or killing miners or damaging equipment. Roof control was considered the paramount safety problem in underground coal mines.

Various methods of roof control were commonly employed, including bolting steel straps ("matting") to the roof of the mine, covering it with a metal mesh material ("meshing") or placing bolts at intervals to keep the roof up. The testimony was conflicting on whether there was a need for full matting or meshing of the roof in the "A" panel of the mine where Smith was injured. It was undisputed that this portion of the mine was prone to rock falls due to a "slickenside" condition, which was caused by small geologic faults which have slick, polished surfaces to which surrounding rocks will not adhere.

Smith contended that roof control was, to some extent, left to the discretion of the mine foreman, but that there was evidence that various employees of ARCO were assigned to the Beaver Creek mine from time to time who were given responsibility for safety matters, including roof control problems. ARCO argued that roof control was solely the concern of Beaver Creek management, and that if it was left to the discretion of the foreman, that too was Beaver Creek's decision. It was undisputed that visual inspection, by a foreman or a miner, would not reveal the existence of a slickenside condition. There did not seem to be any disagreement, moreover, that the cause of the rock fall that injured Smith was this slickenside condition.

At the time Smith was injured, the crew in the "A" panel were engaged in retreat mining which is a procedure in which pillars of coal, originally left in as roof support, are mined out. The result is a controlled cave-in as the mining crew retreats. There was evidence that in this procedure, roof control can be more difficult than usual, due to air slacking or weakening of the rocks in the interval (frequently a year or more) between the time the crew first opens up the tunnel and the time it retreat mines the tunnel.

Prior to trial, Smith filed a motion in limine requesting that ARCO not be permitted to introduce evidence that MSHA had approved the roof control plan or had inspected the mine. This motion was denied. During the course of the trial, Smith interposed objections to evidence concerning MSHA. The objections were overruled. Smith also sought to introduce expert testimony to the effect that ARCO had been negligent in its supervision of Beaver Creek's safety organization and in providing safety services to Beaver Creek. The court sustained ARCO's objection to such evidence. After a three-week trial, the jury returned a general verdict in favor of ARCO, from which Smith appeals.

Contentions on Appeal

Smith contends that certain evidentiary rulings were clearly erroneous. He argues that the trial court erred in: (1) refusing to allow Smith's expert witness to testify whether ARCO was negligent in rendering roof control services and whether that negligence was the proximate cause of his injury; (2) denying Smith's motion in limine to exclude testimony referring to MSHA, and evidence of MSHA's approval of the roof control plan; and, (3) permitting ARCO to argue that MSHA's approval of the roof control plan constituted evidence that the roof control practices were sufficient.

ARCO maintains, on cross-appeal, that the trial court should have granted its motion for summary judgment, since, as Beaver Creek's alter ego, it is shielded from liability by the Utah Workmen's Compensation statutes to the same extent as Beaver Creek.

I.

Smith's expert witness, Mr. Heers, testified at length about shortcomings in the operation of the Beaver Creek mine, particularly in roof control methods. His testimony could have implied negligence on the part of the Beaver Creek Coal Company management or on the part of ARCO, depending on whether the finders of fact determined: 1) that Beaver Creek was an autonomous operation, 2) that ARCO was in effect the operator of Beaver Creek, or 3) that Beaver Creek delegated and ARCO assumed responsibility over safety matters. There was ample evidence in the record from which the jury could have inferred any of these facts. Indeed, the questions and answers were framed in terms of "the prudent mine operator." (R., Vol. VIII, pp. 1000-09.) It was the jury's task to decide the identity of the "prudent mine operator" about whom Heers testified.

After Heers' testimony about general conditions in the mine, the following colloquy took place:

SMITH'S COUNSEL: Now do you have an opinion as to whether or not the acts and omissions of ARCO as you've understood them from your view of the facts and the evidence in this case in regard to the Beaver Creek No. 2 operation, including the "A" panel, were prudent mine practices?

ARCO'S COUNSEL: I'll object to this as calling for a legal conclusion and asking him to pass upon a totally legal issue.

THE COURT: I'll sustain the objection and suggest you put your next question.

(R., Vol. VIII, p. 1008.)

Smith's counsel asked the same question following a series of foundation questions about Heers' experience in mining activities. ARCO again objected, on the ground that it was the same question and because it required the witness to pass on the credibility of all the witnesses. The court again sustained the objection. (R., Vol. VIII, p. 1009). There followed a series of questions in which Smith's counsel attempted to elicit Heers' opinion about whether the failure to put up supplementary roof support caused the rock to fall on Smith. Heers was eventually permitted to express his opinion that additional safety measures would have prevented Smith's accident and injuries. (R., Vol. VIII, pp. 1013-14.) Although Smith's counsel did not mention ARCO by name, there was ample evidence in the record from which the jury might have deduced ARCO's liability from Heers' testimony. Moreover, on cross-examination, Heers reiterated his opinion that the safety measures in the Beaver Creek mine were inadequate. (R., Vol. VIII, p. 1046.)

Smith contends on appeal, however, that the court essentially...